People ex rel. Sherwin v. Mead

64 How. Pr. 49

• Court: New York Supreme Court
• Decided: May 15, 1882
• Status: Published

Opinion

After the relator was remanded to the officer as directed in appeal Mo. 1, and on the first day of March, the relator procured another writ of habeas corpus, returnable before the same justice. The officer in his return claimed to hold the prisoner by virtue of a bench warrant, issued by the district-attorney of Albany county, dated the 28th day of February, 1882, commanding him to arrest the relator, who stands indicted in the court of oyer and terminer for the county of Albany, wherein such indictment is now pending and to which it has been sent for contempt, and bring him before the said oyer and terminer now in session at the old Capitol, in the city of Albany, in said county, if the said court shall then be in session, together with the warrant, and also by virtue of a certified copy of an order of the court of sessions of the county of Albany, sending the indictment to the court of oyer and terminer for trial. He also returned the order 'of Mr. justice Donohue, granted in proceedings Ho. 1, remanding the relator to his custody. Copies of all these papers were produced before the judge in the hearing. The relator filed a traverse to the return. By the evidence upon the hearing before the justice it appears that at the time of the .arrest of Sherwin on the fourth of February, as stated in proceedings Ho. 1, that,Mead, the officer, had in his possession six bench warrants, all of the character of the one set forth in the other proceedings ; that the officer claimed that ■he had not arrested the prisoner upon five of them, but had upon the one returned with the writ, and before the twenty--eighth of February he had returned the warrants unserved to "the district-attorney of Albany county, and he thereafter "issued to him the bench warrant, upon which he now claims 'the right to hold the prisoner. It appeared from an affidavit ¡filed that the court of oyer and terminer, in and for the county -of Albany, was in actual session at the time of the hearing. ’The justice dismissed the proceedings and remanded the prisoner to the custody of the officer. The questions presented and discussed on this appeal are substantially the same :as those in appeal Ho. 1, and the order should be affirmed, ■the form to be settled by Mr. justice Beady.

Daniels and Beady, JJ., concur.

Note.—For reports of the case of Phelps, see Phelps agt. People (49 How. Pr. Rep., 437, 451, 470, 479; affirmed 6 Hun, 401; 72 N. Y., 334; 49 How. Pr. Rep., 462; affirmed 6 Hun, 428 ; 72 N. Y., 365); People agt. Klugman (49 How. Pr. Rep., 484); People agt. Bank of North, America (75 N. Y., 547).

The order was settled as follows:

“ It is ordered, that the said order appealed from be and the same is hereby in all things affirmed; and the said Frank. It. Sherwin is remanded and required, on the 29th day of -November, 1882, at twelve o’clock noon, at the chambers of the supreme court, in the Court House in the city of Hew York, to surrender himself into the custody of the respondent Michael L. Mead, or such other officer as may have or be entitled to receive him into custody on the bench-warrant on which said Sherwin was arrested by said Michael L. Mead on the 4th day of February, 1882.”